Defamation: Containing Fire and Fury in the Deep Blue State

Seyfarth Synopsis: As Californians grow tragically familiar with wildfire, California employers face another threat of fire in the form of defamation lawsuits. The rapidly burning #MeToo anti-harassment movement, and constant talk in the news about peoples’ reputations being destroyed, has rained down fire and fury for California employers forced to consider possible defamation lawsuits by current or former employees.

Stoking the Fire: How Defamation Lawsuits Begin

Workplace defamation lawsuits can flare up in various ways: the administration of performance reviews, background and reference checks, and conducting workplace investigations. But the fires often burn fiercest in the context of harassment lawsuits. In defending a workplace harassment lawsuit, employers must use caution in making any statement about the litigation that could harm a plaintiff’s reputation, particularly where it comes to providing employment references. Employers who fail to do so put themselves at risk of permitting a rumor mill that sets themselves up for a defamation lawsuit.

Usually a defamation plaintiff must prove damage to profession or occupation, but sometimes the statements are so controversial that the words alone are deemed to cause harm. A false statement that an employee “sexually assaulted” another employee might fall into that category, as might a false statement that an employee “colluded with a competitor,” as these statements might imply an individual is professionally unfit.

In the workplace (and especially in the harassment context), statements are more likely to damage a person’s profession or occupation because they will likely relate to the person’s reputation.

What Can I Do If a Fire Catches?

Here are three situations that could spark a defamation claim and what employers can do to douse any flame:

An employee volunteers that you disciplined a former employee for sexual harassment, when talking to a prospective employer for the former employee.

Solution: Have a written policy that restricts what your company will tell prospective employers of your former employees. Do not provide substantive information regarding an employee’s reasons for leaving your company, and provide that all inquiries go to Human Resources and limit HR’s responses to the former employee’s job title and dates of employment.

A supervisor emails another supervisor that an employee seeking to transfer to another department is “stupid and crazy.”

Solution: Train supervisors on appropriate language to use in the workplace and while providing coaching or performance improvement plans to employees who are struggling in their job performance.

A company representative posts on Facebook that a former employee’s actions were “felonious” after the employee sues the company for retaliating against him for whistleblowing.

Solution: Instruct company representatives to refrain from posting on social media or making statements to the media regarding any pending lawsuit against the company.

Extinguishing the Fire: An Employer’s Potential Defenses

As long as the statement was not made to purposely harm a person’s reputation and it was not known to be false, employers have an arsenal of affirmative defenses with which to combat defamation fires. These defenses include:

Truth,

Consent,

Qualified Privilege—applying to communications to others expressing concerns on matters of common interest (e.g., job references to other employers), and

Absolute Privilege—applying to communications made in certain legal proceedings or in certain reports of crimes to the police.

Workplace Solutions: Fire Prevention 101

In preventing defamation suits stemming from harassment lawsuits, employers should never overlook the importance of maintaining a fire-proof anti-harassment policy. Should a harassment lawsuit arise, employers should ensure that representatives and supervisors exercise caution in making statements about current or former employees. If you have any questions or concerns, your friendly California Seyfarth firefighters are here to serve and protect.

About

Published by Seyfarth Shaw LLP, this blog is for in-house attorneys, HR professionals, business owners, and managers who face real issues on a daily basis and need practical solutions to address them. We aim to provide timely, topical information on the challenges that California employers face. Unlike blogs that simply provide legal updates, this blog will have a running series of Workplace Solutions that will address evolving areas of interest, including California leaves of absence, recruiting and hiring, trade secrets, and the use of social media.